State v. Huebner
| Decision Date | 11 March 1994 |
| Docket Number | No. S-93-167,S-93-167 |
| Citation | 245 Neb. 341,513 N.W.2d 284 |
| Parties | STATE of Nebraska, Appellee, v. Roger W. HUEBNER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Constitutional Law: Appeal and Error. Except in the most unusual cases, a question of constitutionality must have been properly raised in the trial court to be considered on appeal.
2. Appeal and Error. In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as the trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court.
3. Constitutional Law: Speedy Trial. The right to a speedy trial, as guaranteed under the Sixth Amendment, is not implicated until after the accused has been charged or arrested even though the prosecuting authorities had knowledge of the offense.
4. Constitutional Law: Due Process. The Due Process Clause requires dismissal only if a defendant shows that the prosecuting authorities' delay in charging him caused substantial prejudice to his right to a fair trial and that the delay was an intentional device to gain unfair tactical advantage over him.
5. Due Process: Proof. A defendant cannot rely on the real possibilities inherent in a delay in bringing charges against him, such as dimmed memories, inaccessible witnesses, and lost evidence. The defendant must show actual prejudice.
6. Trial: Mental Competency. The granting of a request for a psychiatric evaluation of a victim falls within the discretionary power of the trial court.
7. Sexual Assault: Mental Competency: Witnesses. The purpose of a psychiatric examination in a case involving a sex offense is to detect any mental or moral delusions or tendencies causing distortion of the imagination which would affect the probable credibility of the complaining witness.
8. Trial: Mental Competency. A trial court may, in its discretion, order a psychiatric examination of the complaining witness where the record establishes compelling reasons, but not for a mere fishing expedition.
9. Trial: Witnesses. A witness' credibility and weight to be given to testimony are matters for determination and evaluation by a fact finder.
10. Sexual Assault: Witnesses. In a prosecution for sexual assault, the prosecutrix may testify in chief on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details, and others may likewise testify in chief to such fact and nature of the complaint, but not as to its details.
11. Sexual Assault: Witnesses: Corroboration. The rule which prohibits witnesses from testifying about the details of a sexual assault complaint made by a victim applies to corroborative evidence provided after the victim has given direct testimony of the assault.
12. Sexual Assault: Corroboration: Proof. After the prosecutrix has testified to the commission of the offense, it is competent to prove in corroboration of her testimony as to the main fact that within a reasonable time after the alleged outrage she made complaint to a person to whom a statement of such an occurrence would naturally be made.
13. Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of evidence in the State's case in chief in a criminal prosecution, and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict, but may challenge sufficiency of the evidence for the defendant's conviction.
14. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.
15. Lesser-Included Offenses: Jury Instructions: Evidence. Where the prosecution has offered uncontroverted evidence on an element necessary for a conviction of the greater crime but not necessary for the lesser offense, a duty rests on the defendant to offer at least some evidence to dispute this issue if he wishes to have the benefit of a lesser-offense instruction.
Charles W. Balsiger, P.C., Norfolk, for appellant.
Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.
Appellant-defendant, Roger W. Huebner, was charged with first degree sexual assault on a child. Huebner was found guilty after a jury trial. On appeal, Huebner asserts the trial court erred in (1) overruling his plea in abatement; (2) denying him the opportunity to have the complaining witness examined by a psychologist or psychiatrist; (3) preventing him from offering evidence of a prior sexual assault on the alleged victim by someone else; (4) permitting the victim and others to testify regarding the particulars of the alleged sexual assault and in overruling his motion in limine on the grounds that the statement of the alleged victim was not timely reported; (5) denying his motion for dismissal and directed verdict upon the close of the State's case in chief, as the State failed to meet its burden of proof; and (6) denying his request to instruct the jury on a lesser-included offense. We affirm.
Huebner was the boyfriend of the victim's mother. He lived with the victim, her mother, and a younger brother of the victim. The events which give rise to Huebner's conviction took place in December 1989. The victim testified that her mother was with Huebner's parents. The victim and her younger brother were at home with Huebner. Her brother was sleeping in his room. While the victim was in her own room doing homework, Huebner came into her room, handcuffed her right arm to her bed, and held her other arm with his hand. He pulled her pants and underwear down to her knees and digitally penetrated her vagina. The victim did not report the incident to anyone until approximately July 1990. At that time, an official report was made by the Department of Social Services of the alleged assault.
On November 19, 1991, nearly a year and a half after the assault was first reported, a complaint was filed against Huebner. He filed a plea in abatement asserting that the evidence adduced at the preliminary hearing was insufficient to justify the filing of the information and that the proceedings against him were unreasonably delayed, since the State had had knowledge of the nature of the complaint for well over a year before it was filed. The plea was overruled.
Before trial, Huebner requested that the victim undergo psychiatric examination to determine her credibility. The court denied the request. On January 11, 1993, 7 days before trial, Huebner filed a notice of intent to offer evidence of a prior sexual assault perpetrated upon the victim. The court denied this motion also.
At trial, Brigid Rock, a social worker, and Alfredo Ramirez, a counselor, testified about details of the sexual assault. Katie Boley, another social worker, testified as an expert witness about reasons child victims of sexual assault delay reporting the assaults.
After the State rested, Huebner moved for dismissal and a directed verdict, which the court denied.
Huebner claims that the trial court erred in overruling his plea in abatement. In that plea, Huebner challenged the sufficiency of the evidence to justify filing the information and binding the case over to district court. He also asserted that the filing of the charges had been unreasonably delayed and therefore denied him equal protection and due process of law.
At the outset, we note that on appeal, Huebner has attempted to raise a Sixth Amendment speedy trial claim. This court has consistently held that except in the most unusual cases, a question of constitutionality must have been properly raised in the trial court to be considered on appeal. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987). In addition, in the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as the trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993); State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991); State v. Whitmore, 238 Neb. 125, 469 N.W.2d 527 (1991). At the hearing on the plea in abatement, Huebner's argument was threefold. He argued a due-process rights violation, a denial of his right to confront witnesses, and ineffective assistance of counsel. Huebner did not raise the issue of speedy trial in the lower court; therefore, we need not address it.
In any event, the right to a speedy trial, as guaranteed under the Sixth Amendment, is not implicated until after the accused has been charged or arrested even though the prosecuting authorities had knowledge of the offense. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Huebner's main due process contention is that the delay between the time the State learned of the assault and the time it filed the complaint and information was unreasonable and constituted a denial of his Fifth Amendment due process rights.
The Due Process Clause requires dismissal only if a defendant shows that the prosecuting authorities' delay in charging him caused substantial prejudice to his right to a fair...
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